United States v. Flesher, 73 M.J. 303 (a trial judge has a special obligation to ensure that any and all scientific testimony is not only relevant, but reliable; this gatekeeping requirement is intended to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field).

(six factors (Houser, 36 MJ 392 (1993)) must be established for expert testimony to be admissible: (1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations; Daubert (509 US 579 (1993)) provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability).

(a military judge is obligated to determine whether an expert witness’s testimony would be helpful to the panel; MRE 702 states that an expert witness may provide testimony if it will assist the trier of fact to understand the evidence or determine a fact in issue; thus, an expert may testify if his or her testimony is helpful; a suggested test for deciding when experts may be used is whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject).

(expert testimony about the sometimes counterintuitive behaviors of sexual assault or sexual abuse victims is allowed because it assists jurors in disabusing themselves of widely held misconceptions; allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent is appropriate).

(in this case, the qualifications of a sexual assault response coordinator were not sufficiently established on the record to permit her to testify as an expert witness on the counterintuitive behavior of sexual assault victims; in appropriate circumstances, a military judge may allow an expert witness to testify regarding how victims may or may not behave following a sexual assault; further, an appropriately qualified expert witness also may be able to testify why a sexual assault victim may or may not react in a particular manner; but in the instant case, the trial counsel conceded that his witness was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the witness could not testify on this point; and yet, the witness clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; an expert witness may not offer opinions that exceed the scope of the witness’s expertise; in this case, under these circumstances, it was error to permit the witness to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial).

(under MRE 703, an expert’s opinion may be based upon personal knowledge, assumed facts, documents supplied by other experts, or even listening to the testimony at trial).

(the government, as the proponent of a expert witness’s testimony, has the burden of demonstrating the reliability of that witness’s testimony; to show that an expert’s opinion is connected to existing data by more than the ipse dixit of the expert, the government may rely on the four Daubert (509 US 579 (1993)) reliability factors or on alternative indicia of reliability; the four reliability factors set out in Daubert are: (1) whether a theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field).

(MRE 702 permits an expert to be qualified by reason of experience rather than skill, training, or education; in other words, experience in a field may offer another path to expert status; even so, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express; if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts; and the military judge should state on the record why he concludes that such a witness’s testimony is reliable).

(expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked).

2010 (September Term)

United States v. Sweeney, 70 M.J. 296 (although those performing initial drug tests may well be independent scientists carrying out non-adversarial public duties, that does not mean that their statements are not produced to serve as evidence; where an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information; this is all the more evident where the government expert testifies that the forensic laboratory’s mission is to provide urinalysis drug testing that is scientifically valid and forensically acceptable as evidence in courts of law).

United
States v. Blazier, 69 M.J. 218 (an expert may,
consistent with the
Confrontation Clause and the rules of evidence, (1) rely on, repeat, or
interpret admissible and nonhearsay machine-generated printouts of
machine-generated data, and/or (2) rely on, but not repeat, testimonial
hearsay
that is otherwise an appropriate basis for an expert opinion, so long
as the
expert opinion arrived at is the expert’s own; however, the
Confrontation
Clause may not be circumvented by an expert’s repetition of otherwise
inadmissible testimonial hearsay of another).

(a qualified expert
witness may give testimony in the form of opinion if (1) the testimony
is based
upon sufficient facts or data, (2) the testimony is the product of
reliable
principles and methods, and (3) the witness has applied the principles
and
methods reliably to the facts of the case; with respect to the first
requirement, if of a type reasonably relied upon by experts in the
particular
field in forming opinions or inferences upon the subject, the facts or
data
need not be admissible in evidence in order for the opinion or
inference to be
admitted; however, such inadmissible facts or data shall not be
disclosed to
the members by the proponent of the opinion or inferences unless the
military
judge determines that their probative value in assisting the members to
evaluate the expert’s opinion substantially outweighs their prejudicial
effect).

(it
is well-settled
that under both the Confrontation Clause and the rules of evidence,
machine-generated data and printouts are not statements and thus not
hearsay -
machines are not declarants - and such data is therefore not
testimonial;
machine-generated data and printouts such as those in this case are
distinguishable from human statements, as they involve so little
intervention
by humans in their generation as to leave no doubt they are wholly
machine-generated for all practical purposes; because machine-generated
printouts
of machine-generated data are not hearsay, expert witnesses may rely on
them,
subject only to the rules of evidence generally, and MRE 702 and MRE
703 in
particular).

(an
expert witness
may review and rely upon the work of others, including laboratory
testing
conducted by others, so long as they reach their own opinions in
conformance
with evidentiary rules regarding expert opinions; an expert witness
need not
necessarily have personally performed a forensic test in order to
review and
interpret the results and data of that test; that an expert did
not
personally perform the tests upon which his opinion is based is
explorable on
cross-examination, but that goes to the weight, rather than to the
admissibility, of that expert’s opinion).

(lack of knowledge or
unwarranted reliance on
the work of others may make an expert opinion inadmissible: the
military judge,
in his capacity as a gatekeeper, must determine whether the opinion is
based
upon sufficient facts or data and is the product of reliable principles
and
methods reliably applied to the case).

(the fact that
the government may, consistent
with the rules of evidence and the Confrontation Clause, introduce
machine-generated data and expert testimony relying on the work of
others does
not preclude an accused from seeking to call as witnesses those who
operated
the machines or performed the work being relied upon to test, among
other
things, the accuracy, validity, and reliability of those machines and
tests; as
the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ,
10 USC
§ 846, and RCM 703(a) make clear, a defendant has the right to the
compulsory
process of witnesses who can provide relevant and necessary evidence in
their
defense; in other words, a live witness not required by the
Confrontation
Clause because the government admitted no testimonial hearsay may
nonetheless
be called by the defense and attendance compelled upon a showing of
relevancy
and necessity).

(neither
the rules
of evidence nor the Confrontation Clause permit an expert witness to
act as a
conduit for repeating testimonial hearsay; an expert witness may review
and
rely upon inadmissible hearsay in forming independent conclusions, but
he may
not circumvent either the rules of evidence or the Sixth Amendment by
repeating
the substance of the hearsay).

(although
the expert
witness in this case may well have been able to proffer a proper expert
opinion
based on machine-generated data and calibration charts, his knowledge,
education, and experience and his review of the drug testing reports
alone,
both the drug testing reports and the expert witness’s testimony
contained a
mix of inadmissible and admissible evidence; specifically, the cover
memoranda
were inadmissible under the Confrontation Clause, and the expert
witness’s
testimony conveying the statements contained in those cover memoranda -
including those concerning what tests were conducted, what substances
were
detected, and the nanogram levels of each substance detected - were
inadmissible under both the Confrontation Clause and MRE 703, while the
machine-generated printouts and data were not hearsay at all and could
properly
be admitted into evidence and serve as the basis for the expert
witness’s
conclusions).

2009 (September Term)

United
States v. Lloyd, 69 M.J. 95 (an accused is
entitled to an expert’s
assistance provided by the government before trial to aid in the
preparation of
his defense upon a demonstration of necessity).

(the accused has the burden
of establishing
that a reasonable probability exists that (1) an expert would be of
assistance
to the defense, and (2) that denial of expert assistance would result
in a
fundamentally unfair trial; in order to satisfy the first prong of this
test,
the defense must show (1) why the expert is necessary, (2) what the
expert
would accomplish for the accused, and (3) why defense counsel is unable
to
gather and present the evidence that the expert would be able to
develop).

(in a request for expert
assistance before
trial, the defense has the burden to show that there is more than the
mere
possibility of assistance from a requested expert; the defense must
show a
reasonable probability that the expert would assist the defense and
that denial
of the expert would result in an unfair trial).

(appellant, who was charged
with assault with a
dangerous weapon in connection with his involvement in a bar fight in
which
three victims were stabbed, failed to show that the assistance of a
blood
spatter expert was necessary; although the defense argued that a blood
spatter
expert was necessary to explore all possibilities as to how the blood
came to
be on the shirt that appellant was wearing at the time of the
altercation, the
defense’s stated desire to explore all possibilities did not satisfy
the
requisite showing of necessity; in addition, although the defense
argued that
it needed to understand and potentially present expert testimony on the
manner
in which blood spatters from a wound and that expert assistance on the
physics
of bloodstain patterns would allow it to either rule out or present a
theory
about the presence of the alleged victim’s blood on appellant’s
clothing, the
defense did not specify what theory it sought to present; absent a more
precise
explanation of the theory it hoped to pursue through the assistance of
a blood
spatter expert, the military judge did not abuse her discretion when
she denied
the defense motion for the assistance of a blood spatter expert).

United
States v. Anderson, 68 M.J. 378 (servicemembers
are entitled to
government-provided expert assistance if such assistance is necessary
to their
defense; the government must provide the expert if the accused
establishes that
a reasonable probability exists that (1) an expert would be of
assistance to
the defense, and (2) that denial of expert assistance would result in a
fundamentally unfair trial; to establish the first prong, the accused
must show
(1) why the expert assistance is needed, (2) what the expert assistance
would
accomplish for the accused, and (3) why the defense counsel were unable
to
gather and present the evidence that the expert assistance would be
able to
develop; when the defense requests a nonmilitary expert, the defense
must
provide an estimated cost of employment and illustrate why a military
expert
would be an inadequate substitute; while the military judge is not
required to
provide the particular expert requested, if the defense shows that
expert
assistance is necessary, an adequate substitute must be provided).

2008 (Transition)

United
States v. Freeman, 65 M.J. 451 (servicemembers
are entitled to investigative
or other expert assistance when necessary for an adequate defense; the
mere
possibility of assistance is not sufficient to prevail on the request;
instead,
the accused has the burden of establishing that a reasonable
probability exists
that (1) an expert would be of assistance to the defense, and (2) that
denial
of expert assistance would result in a fundamentally unfair trial; to
establish
the first prong, the accused must show (1) why the expert assistance is
needed,
(2) what the expert assistance would accomplish for the accused, and
(3) why
the defense counsel were unable to gather and present the evidence that
the
expert assistance would be able to develop).

2007

United States v. Harrow, 65 M.J. 190 (in a murder
case based on the shaken baby syndrome, testimony by an expert witness
in the fields of developmental and forensic psychiatry that the most
common person to fatally abuse a child is a biological parent and that
the most common trigger for baby shakings is persistent crying, was
inadmissible profile evidence that focused on characteristics of the
abuser, as opposed to characteristics of the child).

(in a murder case based on the
shaken baby syndrome, testimony by an expert witness in the fields of
developmental and forensic psychiatry about the symptoms and
progression of shaken baby syndrome and her medical conclusion that the
victim’s primary diagnosis was probably most consistent with an
inflicted injury, was not inadmissible profile evidence; the evidence
regarding the progressions and symptoms of shaken baby syndrome focused
on the characteristics of the child, not the abuser; and the evidence
was not profile evidence simply because it tended to incriminate the
accused).

United States v. Foster, 64 M.J. 331 (an expert may
testify about symptoms that are generally found among children who have
suffered sexual abuse and whether the child-witness has exhibited these
symptoms; an expert may also testify about patterns of consistency
generally found in the stories of victims as compared to patterns in
the victim’s story; however, there is a fine line between admissible
testimony in this area and testimony about a victim’s credibility or
its functional equivalent, which is not admissible).

(expert testimony is
appropriate where scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue; when an individual testifies as an expert
under MRE 702, it is precisely because the military judge has found
that individual to hold the requisite qualifications of an expert; the
members are entitled to be informed of that designation and a military
judge must not impose his or her own views to either diminish or
enhance that important role).

United States v. Brooks, 64 M.J. 325 (an expert may
testify about matters within his or her area of expertise where
scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue; but an expert may not testify regarding the credibility or
believability of a victim, or opine as to the guilt or innocence of an
accused).

(three reasons support the
prohibition against experts testifying as human lie detectors; first,
determination of truthfulness exceeds the scope of a witness’s
expertise, for the expert lacks specialized knowledge to determine if a
child-sexual-abuse victim is telling the truth and therefore cannot
assist the trier of fact as required under MRE 702 before expert
testimony is permissible; second, such testimony violates the
limitations of MRE 608; and third, human lie detector testimony
encroaches into the exclusive province of the court members to
determine the credibility of witnesses).

(an expert may testify as to
what symptoms are found among children who have suffered sexual abuse
and whether the child-witness has exhibited these symptoms; he or she
may also discuss various patterns of consistency in the stories of
child sexual abuse victims and compare those patterns with patterns in
the victim’s story; however, to put an impressively qualified expert’s
stamp of truthfulness on a witness’sstory goes too far;
an expert should not be allowed to go so far as to usurp the exclusive
function of the court members to weigh the evidence and determine
credibility).

(in a child sexual abuse
case, where the government expert’s testimony suggested that there was
better than a ninety-eight percent probability that the victim was
telling the truth, such testimony was the functional equivalent of
vouching for the credibility or truthfulness of the victim, and the
military judge erred in admitting it; the error was plain and obvious,
and it materially prejudiced the accused’s substantial rights where the
case hinged on the victim’s credibility and medical testimony;
accordingly, admitting this improper credibility quantification
testimony was plain error).

United States v. Lee, 64 M.J. 213 (in trials by
courts-martial, the accused is afforded equal access to witnesses and
evidence, including a right to the assistance of necessary experts
without regard to his ability to pay for those expert services).

(prior to trial, the defense
must submit a request for employment of an expert to the convening
authority supported, in part, by a statement of reasons why the
employment of the expert is necessary; if the request is denied by the
convening authority, that request may be renewed at trial before the
military judge).

(an accused’s entitlement to
expert assistance is not limited to actual expert testimony at trial;
the entitlement to that expertise is available before trial to aid in
the preparation of his defense upon a demonstration of necessity).

(to demonstrate necessity for
expert assistance, the accused must show that a reasonable probability
exists both that an expert would be of assistance to the defense and
that denial of expert assistance would result in a fundamentally unfair
trial).

(in this case, the military
judge abused his discretion in refusing a defense request for expert
assistance in a child pornography case where a government witness
offered expert testimony that the images taken from the accused’s
computer were real and not computer-generated based on a novel digital
media analysis; the issue whether the images were real or virtual was
the critical issue, and the defense counsel did not have the
qualifications or expertise to challenge the image analysis presented
by the government’s expert witness; on the facts of this case, the
defense made an adequate showing of necessity where the requested
expert assistance would provide the basis upon which defense counsel
could cross-examine the government expert and possibly challenge the
actual or real nature of the graphic images).

(aside from a common-sense
conclusion that a government expert would be unlikely to cast a
critical eye upon his own expertise, his analytical methods, or his
professional conclusions, making a selected government expert available
for interview prior to trial does not properly respond to a defense
showing of necessity for expert assistance).

(Article 46, UCMJ, is a clear
statement of congressional intent against government exploitation of
its opportunity to obtain an expert vastly superior to the defense’s;
as this case demonstrates, the playing field at trial is rendered even
more uneven when the government benefits from scientific evidence and
expert testimony while the defense is wholly denied a necessary expert
to prepare for and respond to the government’s expert; here, denying
the accused the expert assistance of a defense consultant was an abuse
of discretion).

(courts-martial must not only
be just, they must be perceived as just; the requirement of Article 46,
UCMJ, for equal access to witnesses and evidence secures that just
result and enhances the perception of fairness in military justice;
where the government has found it necessary to grant itself an expert
and present expert forensic analysis often involving novel or complex
scientific disciplines, fundamental fairness compels the military judge
to be vigilant to ensure that an accused is not disadvantaged by a lack
of resources and denied necessary expert assistance in the preparation
or presentation of his defense).

2006

United States v. Allison, 63 M.J. 365 (a witness may
testify as an expert on a particular subject matter only if the
military judge determines that the witness is qualified based on his or
her knowledge, skill, experience, training, or education regarding that
subject).

(although
statistical
probabilities may be basic to DNA analysis, it does not necessarily
follow that all experts qualified to give testimony on DNA analysis
will be qualified to testify regarding statistical frequencies; nor
does it necessarily follow, however, that a witness must be an expert
population geneticist to explain and testify about the methodology and
calculations used to determine the statistical probability of a match
between two DNA samples).

(the military judge did not
abuse his discretion in allowing witnesses to testify regarding the
statistical frequencies establishing the relevance of the DNA evidence
where there was sufficient evidence from which the military judge could
determine that they possessed the knowledge, skill, experience,
training, or education to testify about the databases upon which they
relied, their method of calculation, and the results of their
statistical frequency determinations; the record reflected that the
witnesses had received training in DNA statistical analysis and both
had considerable experience in conducting that analysis; both experts
responded to questions regarding their statistical conclusions and
their understanding of the databases upon which their calculations
relied; the testimony also established that the method of calculation
utilized in the analysis had been developed by statisticians and was
widely accepted).

2005

United
States v. Billings, 61 M.J. 163 (under MRE 702, an
expert witness may testify if he or she is qualified and testimony in
his or
her area of knowledge would be helpful).

(the proponent of expert testimony must
demonstrate
an expert’s qualifications by establishing six factors: (1) the
qualifications
of the expert; (2) the subject matter of the expert testimony; (3) the
basis
for the expert testimony; (4) the legal relevance of the evidence; (5)
the
reliability of the evidence; and (6) that the probative value of the
expert’s
testimony outweighs the other considerations outlined in MRE 403).

(the test for admissibility of expert
testimony is
not whether a jury could reach any conclusion without expert help, but
whether
the jury is qualified without such testimony to determine intelligently
and to
the best possible degree the particular issue without
enlightenment from
those having a specialized understanding of the subject).

(the military judge did not abuse his discretion in permitting a
jeweler to
testify as an expert witness concerning the characteristics of a watch
stolen
in an armed robbery, notwithstanding the fact that the jeweler did not
sell the
watch in question and had never actually seen one, because of the
jeweler’s
specialized knowledge of the subject in relation to that of the
members).

(the trial judge’s gatekeeping function is to ensure that any and all
expert
testimony is not only relevant, but reliable; this gatekeeping function
applies
not only to testimony based on scientific knowledge, but also to
testimony based
on technical and other specialized knowledge).

(when expert testimony’s factual basis, data, principles, methods, or
their
application are called sufficiently into question, the trial judge must
determine whether the testimony has a reliable basis in the knowledge
and
experience of the relevant discipline; a trial court should consider
the four
specific factors identified in Daubert where they are
reasonable
measures of the reliability of expert testimony: (1) whether a theory
or
technique can be or has been tested; (2) whether the theory or
technique has
been subjected to peer review and publication; (3) the known or
potential rate
of error in using a particular scientific technique and the standards
controlling the technique’s operation; and (4) whether the theory or
technique
has been generally accepted in the particular scientific field).

(under Daubert, the proponent of expert testimony must be able
to
establish both the expert’s qualifications and the reliability of the
expert’s
basis for forming an opinion; the proponent of evidence has the burden
of
showing that it is admissible).

(the military judge abused his discretion in allowing a jeweler
qualified as an
expert witness to determine from photos that the watch appellant wore
in the government’s
photographic exhibits was solid gold rather than gold plate where the
government failed to satisfy its burden of establishing the reliability
of the
expert’s opinion; the government met none of the four Daubert
criteria
for determining the reliability of expert testimony, nor did it
identify any
alternative indicia of reliability.).

(the military judge did not abuse his discretion when he permitted a
jeweler as
an expert witness to point out the characteristics of a watch in an
advertisement for that watch, and then turn to the government’s
photographic
exhibits and indicate which of those characteristics could be found in
the
watch worn by appellant in the photos; although appellant argued that
because
the photos of her were undated, there could be no inference that she
was
involved in the robbery in which the watch was stolen, and that the
jeweler was
too unfamiliar with the actual type of watch to be able to identify it
reliably
through photos alone, because the jeweler’s knowledge met the standard
required
by MRE 702, these arguments were relevant to the weight of the evidence
rather
than to its admissibility).

United
States v. Hays, 62 M.J. 158 (a witness qualified as an expert may
testify
as to scientific, technical, or other specialized knowledge if it will
assist
the factfinder in understanding the evidence or determining a fact at
issue;
testimony in the form of an opinion or inference otherwise admissible
is not
objectionable because it embraces an ultimate issue to be decided by
the trier
of fact; however, an expert may not express an opinion on the ultimate
issue of
a case).

(an expert opinion
interpreting a
document does not necessarily constitute an ultimate opinion on the
intent of
the document’s author).

(in this case, an expert with
specialized
knowledge in the field of the behavioral aspects of the sexual
victimization of
children was qualified to speak to the strategies employed by sexual
predators
to encourage other individuals to commit sexual offenses against
children and
to offer his opinion as to whether an e-mail could be viewed as part of
such a
strategy).

United
States
v. Bresnahan, 62 M.J. 137 (profile evidence is defined as evidence
that
presents a characteristic profile of an offender, such as a pedophile
or child
abuser, and then places the accused’s personal characteristics within
that
profile as proof of guilt; generally, the use of any profile
characteristic as
evidence of guilt or innocence is improper at a criminal trial; profile
evidence is admissible only in narrow and limited circumstances; for
example,
it is admissible in rebuttal when a party opens the door by presenting
potentially misleading testimony).

(the military judge did not
err in
allowing the trial counsel, during his cross-examination of a defense
expert,
to question the expert’s knowledge of scientific studies that concluded
that
male caregivers were more likely to be the perpetrators in shaken baby
cases
(i.e., questioning about profile evidence), where the defense counsel
opened
the door to this type of questioning by having the expert testify about
various
factors that pointed to the accused’s wife as the one who killed his
infant
son; even if the military judge erred in not sua sponte excluding such
testimony, the error was not plain and obvious, and any error in
admitting this
evidence was harmless).

2004

United
States v. Traum, 60 MJ 226 (before expert testimony
may be
admitted, the following factors must be established by the proponent of
such
testimony: (A) the qualifications of the expert, (B) the
subject
matter of the expert testimony, (C) the basis for the expert testimony,
(D) the
legal relevance of the evidence, (E) the reliability of the evidence,
and (F)
whether the probative value of the testimony outweighs other
considerations).

(expert
testimony is admissible when scientific, technical, or other
specialized
knowledge will assist the trier of fact to understand the evidence or
to
determine a fact in issue; the test is not whether the jury could reach
some
conclusion in the absence of the expert evidence, but whether the jury
is
qualified without such testimony to determine intelligently and to the
best
possible degree the particular issue without enlightenment from those
having a
specialized understanding of the subject).

(generally,
use
of any characteristic profile as evidence of guilt or innocence in
criminal
trials is improper; profile evidence is evidence that presents a
characteristic
profile of an offender, such as a pedophile or child abuser, and then
places
the accused’s personal characteristics within that profile as proof of
guilt).

(child
abuse is
an area where specialized knowledge regarding pediatric forensics and
child
abuse may indeed be helpful to members; children incur all sorts of
injuries as
they move through infancy to the toddler years and beyond; thus, a
panel might
well benefit from an understanding of the methodology doctors use to
determine
the cause of an infant’s injury; in the case of fatal child abuse, the
value of
such specialized knowledge is equally apparent; such information helps
members
discern the critical elements of testimony and place that testimony
within an
analytic framework; this information may also help disabuse members of
preconceptions that might cloud their ability to focus on the evidence
presented as opposed to preconceptions about the nature of the offense
at
issue).

(testimony
of a
forensic pediatrician in the prosecution of the accused for murder of
her
infant daughter that “[i]f a child is less than four years of age, the
most
common cause of trauma death is going to be child maltreatment,” and
that
“eighty percent of children who die, die from a one-time event,” did
not
constitute impermissible profile evidence, because it related to the
characteristics of an infant victim rather than the accused; in
addition, the
statements fell within the rubric of specialized knowledge in the
context of a
general description of fatal child abuse that is useful to the members
in
understanding the evidence and determining a fact in question).

(evidence
of
battered child syndrome is often admitted to show that a particular
injury is
not accidental or is not consistent with the explanation offered
therefor, but
is instead the result of physical abuse by a person of mature
strength).

(the
ban on
profile evidence exists because offering such evidence treads too
closely to
offering character evidence of an accused in order to prove that the
accused
acted in conformity with that evidence on a certain occasion and
committed the
criminal activity in question).

(testimony
setting up a child battering profile must be distinguished from
testimony
focusing on the characteristics of a battered child; the former is
irrelevant
because it is not necessarily true that an accused is a batterer just
because
the individual fits a certain profile; however, the latter is often
helpful in
determining a fact in issue).

(testimony
of a
forensic pediatrician in the prosecution of the accused for murder of
her
infant daughter that “[o]verwhelmingly, the most likely person to kill
a child
is going to be his or her own biological parent,” was impermissible
profile
evidence because it clearly reached both the characteristics of the
victim as
well as the characteristics of the typical offender; while the
pediatrician’s
testimony did not come in the form of numeric probability, members
might have
been left with the impression that if the testimony indicated that the
accused’s daughter died as a result of child abuse, the probability
that she
committed the offense was “overwhelming,” regardless of what specific
evidence
was presented; in essence, the statement placed a statistical
probability on
the likelihood that the accused committed the offense, and thus was
impermissible profile evidence).

(MRE
703 allows
experts to rest their opinion on sources such as personal knowledge,
assumed
facts, documents supplied by other experts, and the testimony of
witnesses at
trial).

(however
relevant and reliable an expert’s testimony might be, such evidence may
be
excluded if its probative value is substantially outweighed by the
danger of
unfair prejudice, confusion of the issues, or misleading the members).

2003

United
States v. Hall, 58 MJ 90 (evidence of urinalysis
tests,
their results, and expert testimony explaining them is sufficient to
permit a
factfinder to find beyond a reasonable doubt that an accused used
contraband
drugs).

United
States v. Diaz, 59 MJ 79 (M.R.E.s 702-705 and 403
operate
to establish a simple four-part test for admissibility of expert
testimony: (1)
was the witness qualified to testify as an expert? (2) was the
testimony within
the limits of the expert's expertise? (3) was the expert opinion based
on a
sufficient factual basis to make it relevant?, and (4) does the danger
of
unfair prejudice created by the testimony outweigh its probative
value?).

(an expert witness may not opine concerning the guilt or innocence
of the
accused; the limits on expert opinion are rooted in recognition that
the expert
lacks specialized knowledge to determine if the victim or witness is
telling
the truth and respect for the member’s exclusive function to weigh
evidence and
determine credibility).

(testimony that opines that a crime has been committed and that a
particular
person did it crosses the line of proper medical testimony).

(the admission of expert testimony that the accused was the
perpetrator of a
non-accidental trauma was plain error).

2002

United
States v. Quintanilla, 56 MJ 37 (a trial judge is
required
to make a preliminary assessment of whether the reasoning or
methodology
underlying an expert’s testimony is scientifically sound, and whether
that
reasoning or methodology properly applies to the facts at issue; this
assessment applies not only to expert testimony based upon scientific
knowledge,
but also to technical and other specialized knowledge covered by
Mil.R.Evid.
702).

(the military judge’s gatekeeping function with respect to
scientific/expert
testimony is to ensure that any and all expert testimony, including any
information used to form the basis for an opinion, is not only
relevant, but
also reliable).

(military judge did not abuse his discretion in qualifying expert
and
admitting his testimony where the military judge ultimately undertook
to apply
the appropriate analysis under Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
509 U.S. 579 (1993), where the scientific principles involved were not
particularly novel or controversial, and where the witness testified
that: (1)
his opinions were based upon his own experience and on an overview of
analytical studies in the field; (2) the studies he relied upon were
peer-reviewed; (3) the rates of error were reported in the studies, but
he
presently lacked recall of the rates for each study; (4) the studies
were
scientifically valid, had not been repudiated, and were generally
accepted
within the scientific community; and (5) he still retained licenses to
practice
and had personal experience in treating victims of sexual abuse).

United
States v. Rodriguez, 56 MJ 336 (a party-opponent
may test
the basis of an expert’s opinion by inquiring into the facts and data
underlying that opinion).

2001

United
States v. Green, 55 MJ 76 (military judge has
broad
discretion as the "gatekeeper" to determine whether the party
offering expert testimony has established an adequate foundation with
respect
to reliability and relevance).

(the military judge may determine in appropriate circumstances that
scientific test results, as explained by an expert witness, permit
consideration of the permissive inference that presence of a controlled
substance demonstrates knowledge and wrongful use).

(if a party fails to challenge the admissibility of expert
testimony, the
issue may be treated as waived, absent plain error).

United
States v. Norris, 55 MJ 209 (military judge did
not abuse
his discretion in ruling that witness was qualified as an expert with
respect
to a diagnostic opinion of post-traumatic stress disorder formulated in
the
course of providing a victim with the therapy that her family requested
where: the witness was trained and experienced in counseling and
treating
victims of sexual abuse; the witness used her training and experience
to reach
certain conclusions about the victim’s ailments upon reasonable
investigation;
the record did not demonstrate that it was either inappropriate or
unusual for
a sexual abuse counselor such as the witness to reach a working
diagnosis for
purposes of proceeding with treatment).

United
States v. Dimberio, 56 MJ 20 (defense proffer
showed that
although expert had not known a given individual long enough to form a
traditional opinion as to her character and had not heard about her
reputation
in the community, the expert could express an expert opinion about the
individual’s mental condition based upon his examination of the
individual).

(under Mil.R.Evid 401-405 and the 700 series rules, expert testimony
pertaining to a mental disorder may very well be relevant if the
defense
establishes that individuals with certain diagnoses confronted with
certain
situations may respond in a similar consistent way, but such evidence
raises
more complex inferential problems that require a sufficient basis in
the first
place).

(an adequate proffer as to expert testimony includes: (1)
qualifications of the expert; (2) the subject matter of the expert
testimony;
(3) the basis for the expert testimony; (4) legal relevance of the
evidence;
(5) reliability of the evidence; and (6) probative value of the
testimony.

(appellant’s proffer concerning expert testimony about his wife’s
mental
health problems was inadequate because, assuming the expert’s
qualifications,
it lacked evidence that the alleged mental health problems had a nexus
or link
to behavioral traits of acting out or violence; the evidence was not
legally
relevant absent the expert showing that these traits manifest
themselves under
certain situations).

(an expert offering testimony on mental health problems, like those
offering
other scientific theories, would have to show that the traits do exist
in an
individual and that those character traits do react similarly in
certain
situations under the criteria for admissibility of scientific evidence
established by Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S.
579
(1993)).

(in the absence of character evidence that appellant’s wife’s mental
health
problems were tied to violent acts, the introduction of a mental health
diagnosis that she did not handle stress well was both speculative and
potentially confusing to the members; nor was appellant’s proffer with
respect
to this evidence precise in describing limitations to the potential
expert
testimony; the evidence was thus inadmissible under Mil.R.Evid. 403).

2000

United
States v. George, 52 MJ 259 (where eliciting the
basis for
an expert opinion will place otherwise inadmissible evidence before the
finder
of fact, the military judge should apply the balancing test under MRE
403 to
determine if the prejudicial impact of the inadmissible evidence
outweighs the
probative value of showing the basis for the expert opinion).

United
States v. Armstrong, 53 MJ 76 (expert testimony of
a
psychologist impermissibly vouching for the credibility of a victim of
sexual
abuse is a nonconstitutional evidentiary error to be tested for
harmlessness).

United
States v. Wright, 53 MJ 476 (expert testimony may
not take
the form of testimony concerning the credibility of the victim or other
witnesses, absent a proper foundation under MRE 405; here, where expert
was
well aware of his role and military judge stepped in to exclude
inadmissible
evidence, the testimony of an expert did not impermissibly bolster the
credibility of a victim).

United
States v. Huberty, 53 MJ 369 (abuse of discretion
is the
proper standard by which to review a decision to admit or exclude
expert
evidence; an appellate court will not reverse unless a ruling is
manifestly
erroneous).

(there are six factors to be weighed by a military judge when he is
determining whether expert testimony is admissible: (1) the
qualification
of the expert, MRE 702; (2) the subject matter of the expert testimony,
MRE
702; (3) the basis for the expert testimony, MRE 703; (4) the legal
relevance
of the evidence, MREs 401 and 402; (5) the reliability of the evidence,
MRE
401; and (6) whether the probative value of the evidence outweighs
other
considerations, MRE 403).

(the military judge did not error in excluding appellant’s proffered
expert
testimony about the characteristics of an exhibitionist where:
(1)
appellant could not establish that the theories underlying this
testimony had
gained widespread acceptance in the scientific community; (2) no
studies had
been published supporting the underlying theories of the evidence; (3)
the
theories had not been subjected to peer review; and (4) the theories
had not
been subjected to testing).

(an expert’s extrapolation that, because he could not classify
appellant as
an exhibitionist, appellant could be eliminated as someone who would
commit the
charged act of indecent exposure, constitutes improper use of profile
evidence).

(military judge did not err by admitting testimony of government
expert to
explain the victim’s behavior with respect to appellant differently
than
explained by a defense expert; the testimony was admitted as rebuttal
and to
explain that the victim’s behavior was consistent with a theory that
appellant
had “groomed” her, and not for the purposes of showing that appellant
fit a
profile).

United
States v. McElhaney, 54 MJ 120 (proffered expert
testimony
must meet certain criteria for admissibility: (1) the expert must
be
qualified; (2) the subject of the testimony must be within the realm of
the
expert’s qualification; (3) the expert must have an appropriate basis
for the
testimony; (4) the testimony must be relevant; (5) the testimony must
be
reliable; and (6) the testimony must meet the balancing test under Mil.
R.
Evid. 403).

1999

United
States v. Griffin, 50 MJ 278 (the proponent of expert
testimony
reflecting technical or other specialized knowledge must satisfy the
analysis
of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579
(1993),
and United States v. Houser,
36 MJ 392 (CMA), cert. denied,
510 U.S. 864 (1993), to show that the proffered testimony meets the
requirements
for reliability and relevance).

(military judge did not abuse his discretion in excluding proffered
testimony of psychologist which was not shown to be reliable to support
conclusion that confession was involuntary where: (1) expert
would not be
able or permitted to testify that the confession was false; (2) expert
could
not testify that confession was coerced, but could only say it was
“consistent
with a coerced compliant type confession”; (3) expert’s conclusions
were based
in part on accused’s version of events surrounding questioning, and
military
judge found that version to be not credible; (4) expert expressed
reservations
about the normative standards base on which he based his conclusions;
and (5)
the proffered evidence shed little light on whether confession was
coerced).

United
States v. Eggen, 51 MJ 159 (expert opinion on whether a
victim
of a sexual assault was “faking” emotions and being truthful did not
amount to
plain error when placed in context and where military judge gave
specifically
tailored instruction emphasizing that the members alone must determine
whether
a crime occurred in a specific way and whether the alleged victim or
witness is
credible).

(actions of defense counsel in cross-examining expert on whether a
victim of
a sexual assault was “faking” emotions and being truthful opened the
door for
prosecutor to rehabilitate his expert’s testimony, even to extent of
having
expert opine that the victim was not faking – defense counsel proffered
no
motion to strike any part of the defense cross-examination and did not
request
any curative instructions).

United
States v. Barron, 52 MJ 1(military judge decides
whether a
proffered witness is an expert for purposes of MRE’s 702 and 706, and
his
decision is reviewed for an abuse of discretion).

(while there is some authority that a trial judge may, in an unusual
case,
disqualify a previously qualified expert witness in the interests of
promoting
fairness, there is no direct authority requiring a military judge to
disqualify
a prosecution expert witness on the basis that he or she acted as a de
facto
prosecutor; thus, military judge did not abuse discretion in refusing
to
exercise such power where: (1) military judge was sensitive to
the fact
that this expert’s extra-testimonial conduct might unduly prejudice
appellant;
(2) the military judge stopped the complained-of note passing; (3) the
military
judge rebuked the trial counsel and the expert; and, (4) the military
judge
called the members’ attention to the improper conduct and instructed
them to
consider it against the expert in evaluating her credibility).